Court File and Parties

COURT FILE NO.: CV-20-0068565-00CP DATE: 20241212 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Carol Shriqui AND: Blackbaud Canada, Inc. and Blackbaud, Inc.

BEFORE: J.T. Akbarali J.

COUNSEL: Bryan C. McPhadden and Ryan Matheuszik, for the plaintiff Dana M. Peebles, for the defendants

HEARD: December 12, 2024

Proceeding under the Class Proceedings Act, 1992

Endorsement

Overview

[1] The parties to this putative action have reached a settlement. On this motion, the plaintiff seeks orders (i) certifying the action for the purposes of settlement; (ii) appointing the plaintiff as representative plaintiff; (iii) approving the settlement agreement, (iv) approving the notice of certification and settlement approval and, (v) approving the plan of notice.

Brief Background

[2] The defendant Blackbaud, Inc. (“Blackbaud US”) is an American cloud software company which provides data storage and other services to organizations engaged in philanthropic activities. I refer to these organizations as Blackbaud’s customers. The defendant Blackbaud Canada, Inc. (“Blackbaud Canada”) is a wholly owned subsidiary of Blackbaud US. Collectively, I refer to the defendants as “Blackbaud.”

[3] In the course of their charitable work, Blackbaud’s customers collect information from and about their constituents, including their financial donors, and upload and store that information within online platforms hosted by Blackbaud US. It is up to the customer whether to collect data from their constituents, and what data to collect. The data collected may include personal and financial information. Encrypted fields are available for customers to collect sensitive information like credit card numbers, but ultimately, it is the customer’s decision whether to use the encrypted fields.

[4] In May 2020, Blackbaud US learned it was the victim of a ransomware attack by cyber criminals, who had accessed Blackbaud’s systems from approximately February 7, 2020 to May 20, 2020. The hackers were able to extract a copy of a subset of data from the Blackbaud platform.

[5] Blackbaud paid a ransom to the hackers in exchange for assurances that the exfiltrated personal information would be destroyed.

[6] On July 16, 2020, Blackbaud publicly announced that the ransomware attack had occurred, and that it had paid the ransom.

[7] Blackbaud’s America cybersecurity team engaged in ongoing monitoring of the dark web and has found no evidence of any improper use of any data exfiltrated by the hackers.

[8] Following the data breach, proposed class actions were commenced against both Blackbaud US and Blackbaud Canada in British Columbia, and in this proceeding. In the United States, Blackbaud US was subject to regulatory proceedings initiated by the Attorneys General in 50 states, all of which (save one, in California) have been settled. The terms of the settlement require Blackbaud to assume what is described as a “significant array of duties and responsibilities intended to mitigate the risk of future cyber attacks and their effects.” In California, Blackbaud US has consented to entry of judgment and a permanent injunction which includes similar relief to that in the settled proceedings. Such terms include implementing and maintaining written incident response plans and breach response plans to prepare for and respond to security incidents threatening or compromising personal information stored on Blackbaud’s US network, provide training to employees, establish technical safeguards, and engage an independent third party to assess its data security practices and compliance.

[9] The proposed representative plaintiff in this action, Ms. Shriqui, was a student in the external LLB program through the University of London in England, a Blackbaud customer. She was advised that she was subject to a data breach linked to the Blackbaud hack. Until this time, Ms. Shriqui had been unaware that Blackbaud hosted any of her data; she did not know that the University of London had used a third-party provider for that purpose.

[10] Over four years has passed since the data hack. Ms. Shriqui deposes that she has had no negative experiences that she can link to the data breach.

[11] Similarly, Stephan Wittman, the proposed representative plaintiff in the British Columbia action, was advised by an organization he had donated to, the BC Cancer Foundation, that his personal information had been accessed in the data breach. However, like Ms. Shriqui, Mr. Wittman has been unable to identify any negative impacts or harm that he suffered from the hack.

[12] No one has come forward to class counsel, nor to Blackbaud, nor (to Blackbaud’s knowledge), any Blackbaud customer, to advise that they have suffered any harm from the data breach.

[13] Against this backdrop, the parties have negotiated a settlement that envisions a cy-prés payment. On this motion, they seek certification of this action for the purposes of settlement, approval of the settlement, approval of the notice and notice plan, and approval of counsel fees, and disbursements. They have abandoned their request for honoraria for the representative plaintiffs. I consider each of these issues in turn.

Certification

[14] Pursuant to s. 5(1) of the Class Proceedings Act, 1992, S.O. 1992, c. 6 (the “CPA”), the court shall certify a class proceeding if: (a) the pleadings or the notice of application disclose a cause of action; (b) there is an identifiable class of two or more persons that would be represented by the representative plaintiff; (c) the claims or defences of the class members raise common issues; (d) a class proceeding would be the preferable procedure for the resolution of the common issues; and (e) there is a representative plaintiff who would fairly and adequately represent the interests of the class, has produced a workable plan for the proceeding, and does not have an interest in conflict with the interests of other class members.

[15] Where certification is sought for the purposes of settlement, all the criteria for certification must still be met, although compliance with the certification criteria is not as strictly required: Waheed v. Pfizer Canada Inc., 2011 ONSC 5057, at para. 36; Nutech Brands Inc. v. Air Canada, at para. 9. The representative plaintiff must provide a certain minimum evidentiary basis for certification order: Hollick v. Toronto (City), 2001 SCC 68, [2001] 3 S.C.R. 158, at para. 24.

Section 5(1)(a): The pleadings disclose a cause of action.

[16] Certification will not be denied under s. 5(1)(a) unless it is plain and obvious that the pleadings disclose no cause of action: Hollick, at para. 25.

[17] For the purposes of the settlement approval, the defendants do not dispute, and I accept, that the pleadings disclose a cause of action in negligence.

Section 5(1)(b): There is an identifiable class of two or more persons that would be represented by the representative plaintiff.

[18] In determining whether there is an identifiable class, the court asks whether the plaintiff has defined the class by reference to objective criteria such that a person can be identified to be a class member without reference to the merits of the action. The class must be bounded, and not of unlimited membership, or unnecessarily broad, and have some rational relationship with the common issues: Hollick, at para. 17, Cloud v. Canada (Attorney General) (2004), 73 O.R. (3d) 401 (C.A.), at para. 45.

[19] For purposes of settlement, the plaintiff seeks to certify the following class:

All Canadian residents who were Constituents of Customers of the Defendants in Canada whose Personal Information was accessed by unauthorized parties in or as a result of the Data Breach.

[20] I am satisfied that the class is defined by reference to objective criteria, is bounded and bears a rational relationship with the common issue which I discuss below.

Section 5(1)(c): The claims raise common issues.

[21] When considering whether a claim raises a common issue, the court asks whether it is necessary to resolve the issue to resolve each class member’s claim, and whether the issue is a substantial ingredient of each of the class members’ claims. The issue is a substantial ingredient of each claim if its resolution will advance the case or move the litigation forward, and if it is capable of extrapolation to all class members: Vivendi Canada Inc. v. Dell’Aniello, 2014 SCC 1, [2014] 1 S.C.R. 3, at para. 46.

[22] The plaintiff must prove that there is some basis in fact that the asserted common issues actually exist, and they are common to the entire class: Kuiper v. Cook (Canada) Inc, 2020 ONSC 128, at paras. 26-33.

[23] The plaintiff proposes to certify the following issue, common to the class:

Did the defendants owe the plaintiff and class members a duty of care in respect of the Data Breach?

[24] I am satisfied that this question is common to all class members, and the resolution of this question at a common issues trial would advance the action for all class members, avoiding the need for each class member to prove the issue in individual trials.

[25] Moreover, I am satisfied that the plaintiffs have adduced evidence providing some basis in fact that the proposed common issue exists, including evidence that Blackbaud hosted their data on its server through third-party services engaged by the organizations with which the class members had a direct relationship.

Section 5(1)(d): Preferable Procedure

[26] This branch of the test requires that the court be satisfied that a class proceeding would be the preferable procedure for the resolution of the common issues. This inquiry is directed at two questions: first, whether the class proceeding would be a fair, efficient, and manageable way to advance the claim, and second, whether the class proceeding would be preferable to other procedures for resolving the common issues. Preferable procedure is addressed through the lens of the three goals of class proceedings, that is, access to justice, behaviour modification, and judicial economy: Hollick, at para. 27; Banman v. Ontario, 2023 ONSC 6187 at para. 313.

[27] In the context of the settlement, courts have recognized that a class proceeding is a fair, efficient, and manageable method for advancing the class members claims and is preferable to other procedures. As Perell J. held in Waheed, at para. 27, where there is a cause of action, an identifiable class, common issues, and a settlement, there is a strong basis to conclude that a class proceeding is the preferable procedure because certification would serve the primary purposes of the CPA: access to justice, behaviour modification, and judicial economy.

[28] I am satisfied that, in the context of the proposed settlement, a class proceeding is the preferable procedure to resolve the common issues.

Section 5(1)(e): There is an adequate representative plaintiff.

The evidence before me indicates that Ms. Shriqui is an adequate representative plaintiff. She understands her obligations, and has played an active role in the action, and will continue to do so. She has no known conflict of interest with other class members.

Conclusion on Certification

[29] I am satisfied that it is appropriate to certify the action for the purposes of settlement.

Notice Plan

[30] Normally, once an action is certified for the purposes of settlement, class counsel undertakes a notice program to advise the class of the settlement and seek objectors, and where appropriate, give class members the opportunity to opt out. A date is set for a settlement approval hearing at which class members may elect to participate.

[31] In this case, I am asked to approve the settlement without such notice, and approve a notice plan that will provide notice of the approved settlement, thus depriving class members of the opportunity to object. The order sought is highly unusual. Nevertheless, I have been persuaded that the order sought is appropriate and just in the circumstances of this case.

[32] The factual background to this unusual request is as follows.

[33] Blackbaud, as a third-party service provider to its customers, does not have lists of its customers’ constituents who were potentially impacted by the cyber-attack. Blackbaud has no knowledge of any of their data that may have been implicated in the cyber-attack. It is not able to provide contact information for class members to allow them to receive notice.

[34] With a process estimated to take three to six months, at a cost of $1-2.5 million USD, Blackbaud could produce, at best, an incomplete and unreliable list of information. Direct notice to class members is thus impractical, and would be unsatisfactory in any event, given the unreliability of the information that could be gleaned.

[35] The other unique feature of this case that impacts upon notice is that many, if not most, class members, like Ms. Shriqui originally, have no idea that their data was hosted on Blackbaud’s servers. Blackbaud disclosed that it had been targeted by a cyber-attack, but its public disclosure would not have alerted many class members to the fact that their information may have been implicated. Ms. Shriqui found out when she was contacted by the University of London. Mr. Wittman found out through the BC Cancer Foundation. But Blackbaud’s customers made their own determination about to whether to disclose the breach, and what to disclose about it, to their constituents. Thus, it is likely that class members would not be able to identify themselves as class members from a published notice regarding the Blackbaud data hack class action.

[36] The CPA anticipates that notice will be tailored to the particular case, and gives the court the power to dispense with notice where appropriate. Section 27.1.(12) provides that “in approving a settlement, the court shall consider whether notice of the settlement should be given under s. 19…”

[37] Similarly, s. 17(2) provides that the court may dispense with notice of certification of a class proceeding based on the factors set out therein, including the cost of giving notice, the nature of the relief sought, the size of the individual claims of the class members, and any other relevant matter.

[38] Section 19(1) provides that, at any time in a proceeding, the court may order any party to give such notice as it considers necessary to protect the interests of any class member or party, or to ensure the fair conduct of the proceeding. Section 19(4) directs the court to make such orders respecting notice as are necessary to ensure the notice given is the best notice that is practicable in the circumstances.

[39] In this case, the plaintiff proposes a notice plan that requires class counsel to post notice of settlement approval on their three websites, and to send direct notice to all persons who have contacted them in connection with this action and who have provided their email addresses. There are only a few such people, all of whom contacted class counsel before the action was commenced.

[40] This is not a robust notice program, but I accept that it is appropriate in the circumstances for the following reasons.

[41] First, the settlement in this action proposes a modest cy-prés payment. The cost of a direct notice program, given the challenges in compiling even an unreliable list from Blackbaud’s document, is prohibitive: see Cappelli v. Nobilis Health Corp., 2019 ONSC 4521, at para. 30, where Perell J. declined to order a direct notice plan because the settlement sum was too small to justify the cost.

[42] Second, the cost of widespread publication of the notice in publicly available news and online sources is out of proportion to its likely benefit, given that most class members will not recognize that the notice is directed at them. The purpose of notice is to allow those people who may be affected by a class proceeding to identify themselves so that they can consider their rights, including, significantly, the right to opt-out of a settlement to pursue individual litigation against the defendant. The notice will serve no purpose if class members cannot self-identify on reading the notice.

[43] Third, the value of the right to opt-out has to be considered in the circumstances of the case. If there is reason to conclude that the right to opt-out is not particularly valuable, a robust notice program is “far less important”: Fantl v. ivari, 2018 ONSC 4443, at paras. 19-22. In this case, I conclude that the right to opt-out is not particularly valuable. There is no evidence, four years after the data breach, that anyone has suffered any negative impacts from it, or that any person wishes to litigate individually. Moreover, as I will come to, class counsel’s opinion is that there is no realistic possibility of a worthwhile damages award.

[44] Notice is often waived, or posted solely on class counsel’s website, when a plaintiff seeks to discontinue or dismiss a class action. As will become apparent, this action is weak. It can be thought of as a request for a discontinuance, with a positive benefit of a cy-prés payment. I would have granted leave to discontinue this action; in the circumstances, the right to opt out of the settlement is of little to no value.

[45] In these unusual circumstances, I conclude that the notice plan proposed is appropriate.

Settlement Approval

[46] The proposed settlement provides that the defendants will pay the all-inclusive sum of $340,000 in return for a release of claims against them and the dismissal of this action. The settlement funds are intended to be distributed cy-prés to two recipients: The Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic – University of Ottawa, and the Computer Science Data Security Fund – University of Saskatchewan. If the settlement is approved, the parallel action in British Columbia will be discontinued without costs.

[47] Under s. 27.1(1) of the CPA, a proceeding brought under the CPA may only be settled with court approval. The court shall not approve a settlement unless it determines that the settlement is fair, reasonable, and in the best interests of the class: s. 27.1(5) CPA, at para. 7. The burden lies on the party seeking approval: Robinson v. Medtronic, Inc., 2020 ONSC 1688, at para. 63; Nunes v. Air Transat A.T. Inc., at para. 7.

[48] Public policy favours the resolution of complex litigation: Nunes, at para. 7.

[49] Settlements need not be perfect; they are compromises: Lozanski v. The Home Depot, Inc., 2016 ONSC 5447, at para. 71. To find that a settlement is not fair and reasonable, it must fall outside a range of reasonable outcomes: Nunes, at para. 7. An objective and rational assessment of the pros and cons of a settlement is required: Mancinelli v. Royal Bank of Canada, 2017 ONSC 2324, at para. 38. There is a strong presumption of fairness when a proposed class settlement, which was negotiated at arms-length by counsel for the class, is presented for court approval: Nunes, at para. 7.

[50] A court must be assured that the settlement secures appropriate consideration for the class in return for the surrender of its litigation rights against the defendants: Nunes, at para. 7. However, it is not the court’s function to substitute its judgment for that of the parties or attempt to renegotiate a proposed settlement. Nor is it the court’s function to litigate the merits of the action, or, on the other hand, to rubber-stamp a settlement: Nunes, at para. 7.

[51] When considering whether to approve a negotiated settlement, the court may consider, among other things: (a) the likelihood of recovery or likelihood of success; (b) the amount and nature of discovery, evidence or investigation; (c) the proposed settlement terms and conditions; (d) the recommendation and experience of counsel; (e) the future expense and likely duration of litigation and risk; (f) the recommendation of neutral parties, if any; (g) the number of objectors and nature of objections, if any; (h) the presence of good faith, arm’s length bargaining and the absence of collusion; (i) the degree and nature of communications by counsel and the representative parties with class members during the litigation; and (j) information conveying to the court the dynamics of and the positions taken by the parties during the negotiation: Lozanski, at para. 73; Nunes, at para. 7; Robinson, at para. 65.

[52] I find that the proposed settlement agreement is fair and reasonable for the following reasons.

[53] First, the likelihood of success in this litigation was low. Four years after the data hack, there is no evidence of any misuse of the exfiltrated data, or of any person suffering harm as a result. Recent developments in the jurisprudence regarding data breach cases have rejected claims in contract and negligence where there is no ability to show actual damages. Moreover, the jurisprudence has foreclosed relying on the tort of intrusion upon seclusion in data breach cases. There could be the potential for nominal damages for breach of certain provincial privacy acts, but then only in four provinces. Three of those statutes raise questions regarding the jurisdiction of the Ontario courts to entertain such claims. These are not just issues of liability and damages, but would create challenges for the plaintiff on the certification motion.

[54] Second, against this backdrop, the representative plaintiff does not wish to be exposed to an adverse costs award. The proceedings, were they to continue, could be expected to be lengthy, hard-fought, and expensive. The representative plaintiff is not indemnified by counsel or any third party for costs in this litigation. In these circumstances, it would be difficult to find a new representative plaintiff.

[55] Third, there is no behaviour modification that can meaningfully be achieved through this proceeding. The terms of the settlements Blackbaud US has entered into in the United States require it to improve its data security, among other things. The evidence is that these improvements will accrue to the benefit of Canadian constituents of Blackbaud’s customers as well. Behaviour modification has already been achieved in the regulatory proceedings in the United States.

[56] Fourth, the settlement negotiations were undertaken at arms-length and in good faith.

[57] Fifth, the settlement is recommended by both, counsel in this action, and counsel in the British Columbia action.

[58] Sixth, the amount of the settlement is modest, and it would be impractical to distribute it to class members, even if they could be identified.

[59] Because I would have granted the plaintiff leave to discontinue this action without costs, it is obvious that a cy-prés settlement is a fair and reasonable resolution for the class, which at least receives the indirect benefit of the charitable donation going to support efforts of organizations that do work that will benefit people in similar circumstances to the class members.

[60] As to the proposed cy-prés recipients, I note the following:

a. The Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic is the only Canadian public interest technology law clinic. It is based at the University of Ottawa’s Faculty of Law. Evidence in the record indicates that it will use the cy-prés funding to: (i) advance its work to propose meaningful changes to Canada’s privacy laws, including enhanced enforcement tools, and (ii) to conduct additional research on how automated decision-making impacts consumers, and especially those from vulnerable groups. b. The University of Saskatchewan proposes to use the cy-prés funds it would receive to establish the Computer Science Data Security Fund within the College of Arts and Science. The proposed fund would support programs and initiatives in the Department of Computer Science relating to data security.

[61] The proposed cy-prés receipients were chosen by the representative plaintiffs, and are appropriate recipients. The work the recipients intend to further with the funds is related to the issues raised in this litigation and will be for the benefit of class members and the public generally.

[62] I thus approve the proposed settlement.

Counsel Fees

[63] Morgan J. recently noted in Austin v. Bell Canada, 2021 ONSC 5068, at para. 10, citing Commonwealth Investors Syndicate Ltd. v. Laxton, at para. 63 (S.C.J.), that generally, considering whether to approve class counsel fees, “the amount payable under the contract is the starting point for the application of the court’s judgment.”

[64] In MacDonald et al. v. BMO Trust Company et al., 2021 ONSC 3726, at para. 21, Belobaba J. held that the approach that presumes valid the percentage of recovery agreed to in the contingency fee retainer (up to one-third) is appropriate in most class action settlements, but not in “mega fund” settlements that are in the range of $100 million or higher.

[65] I would have expected a retainer agreement to be placed in evidence before me, but I have looked, and there is no retainer agreement in the record. Counsel advise me that, in the Ontario action, the contract contemplates a contingency fee of 25%.

[66] There is ample law explaining why contingency fees in class proceedings advance the goal of access to justice: see, for example, Baker (Estate) v. Sony BMG Music (Canada) Inc., 2011 ONSC 7105, at para. 64; Osmun v. Cadbury Adams Canada Inc., 2010 ONSC 2752, at para. 21. Thus, even without a retainer agreement in evidence, there is some basis to conclude that an award of fees calculated as a percentage of the recovery makes sense in a class action.

[67] The general principles to apply to the assessment of class counsel’s fees were set out by Juriansz J.A., in Smith Estate v. National Money Mart Co., 2011 ONCA 233, at para. 80:

a. the factual and legal complexities of the matters dealt with; b. the risk undertaken; c. the degree of responsibility assumed by class counsel; d. the monetary value of the matters in issue; e. the importance of the matter to the class; f. the degree of skill and competence demonstrated by class counsel; g. the results achieved; h. the ability of the class to pay; i. the expectations of the class as to the amount of the fees; j. the opportunity cost to class counsel in the expenditure of time in pursuit of the litigation and settlement.

[68] The court also considers the integrity of the profession as a relevant factor: Fresco v. Canadian Imperial Bank of Commerce, 2023 ONSC 3335, at paras. 127-133, aff’d 2024 ONCA 628, at paras. 101-102. It is important to note, as the Court of Appeal did in Fresco, at para. 84, that the phrase “integrity of the profession” is not meant to connote dishonesty in this context, but rather, a fee that is not champertous.

[69] In McIntyre Estate v. Ontario (Attorney General), at para. 76, the Court of Appeal for Ontario found that a “fee agreement that so over-compensates a lawyer such that it is unreasonable or unfair to the client is an agreement with an improper purpose -- i.e., taking advantage of the client.”

[70] The risk class counsel took on must be measured from the outset of the litigation, not with the benefit of hindsight: Gagne v. Silcorp Ltd..

[71] In this case, class counsel seeks fees of $127,939 plus disbursements for both, counsel in the Ontario action and counsel in the British Columbia action. The amount sought is 33.3% of the settlement award, plus HST and disbursements. It is thus higher than the contingency fee contemplated in the retainer agreement between Ms. Shriqui and Ontario class counsel.

[72] The evidence before me details the steps taken by class counsel. Ontario counsel met with the representative plaintiff, conducted legal and fact research into the claim, drafted the pleading, negotiated a co-counsel arrangement with BC counsel, and engaged in settlement negotiations. Counsel spent approximately 115 hours on the action.

[73] In British Columbia, class counsel took additional steps, including preparing a notice of application for certification, preparing for and arguing a one-day sequencing hearing, and preparing for and arguing a two-day hearing on whether the BC action should be stayed in favour of arbitration. British Columbia counsel spent about 447 hours on the proceeding there.

[74] With respect to the fee request, I note the following:

a. The percentage recovery that counsel seeks is at the high end of the range of reasonableness in class actions. b. The percentage recovery that counsel seeks is higher than the amount I am advised is agreed to in the retainer between Ontario counsel and Ms. Shriqui. However, Ms. Shriqui’s affidavit supports class counsel’s fee request. c. Ontario class counsel carried disbursements (which are not particularized or supported in the record) but did not indemnify Ms. Shriqui for costs. British Columbia is a no-costs jurisdiction for class proceedings, so there is no issue of indemnification there, but I note British Columbia counsel carried disbursements in the B.C. action, for which there is support in the record. d. The result for the class in this case is fair in the circumstances, but it is not objectively good. The class receives nothing directly in this settlement. The settlement does not even promote behaviour modification; that goal was fully addressed in the regulatory proceedings. e. The matters raised in the litigation are not factually complex. I accept that the legal landscape around data breach cases has been developing, but it is not so much complex as it was uncertain. f. The evidence does not allow me to understand what the value of Ontario class counsel’s docketed hours are as compared to the claim for fees.

[75] The use of contingency fees in class actions is designed to promote access to justice. But one feature of contingency fees is that the premium counsel obtains when they secure a good result in a case works to offset, to some extent at least, the losses attached to the cases that end up not progressing or succeeding. I see no justification for a fee at the high end of the percentage range in a case that was not a success. Awarding a fee at 33.3% of the value of the settlement amount only encourages counsel to take on bad cases, settle early for what they can get, and maximize their fee recovery. It would invite churning bad cases instead of focusing on ones that truly advance the goals of the CPA: access to justice, behaviour modification, and judicial economy.

[76] In the circumstances, I am prepared to approve fees to class counsel of $60,000, which is just over 17.5% of the settlement funds, plus HST.

[77] There is evidence before me of disbursements incurred in British Columbia, but not in Ontario. I am prepared to award disbursements of $36,157.85 with respect to the British Columbia matter; that amount is supported in the record. Without evidence of Ontario counsel’s disbursements, I am prepared to order $1,000 in recognition of the fact that counsel must have incurred some disbursements.

Honoraria

[78] The plaintiffs in Ontario and British Columbia initially sought honoraria, but have since withdrawn their request. Accordingly, I do not address it.

Form of Notice

[79] The parties have provided me with a form of Notice of Settlement approval to be distributed according to the Notice Plan I have already approved. I am satisfied with the form of the proposed Notice, with the exception that the paragraph regarding approval of counsel fees will have to be reworked to reflect my order.

Order

[80] Counsel shall provide me with a revised draft order including the revised Notice as a schedule for my signature.

Conclusion

[81] In summary, I make the following orders:

a. The action is certified for the purposes of settlement; b. The proposed notice plan is approved; c. The proposed settlement is approved; d. Class counsel fees of $60,000 plus HST are approved. B.C. counsel’s disbursements of 36,157.85 are approved. I approve $1,000 in disbursements for Ontario counsel; e. The form of notice is approved subject to revision to reflect my determination of counsel fees and disbursements.

J.T. Akbarali J. Date: December 12, 2024